Delhi District Court
Smt. Purabi Roy vs Sh. Montu Roy on 30 January, 2021
IN THE COURT OF SH. PUNEET PAHWA: ACJcumARCcumCCJ
: NORTH EAST: KARKARDOOMA COURTS: DELHI
CS No. 105572/2015
CNR No. DLNE030000192008
Smt. Purabi Roy
W/o Sh. Shankar Roy
R/o D117, Second Floor,
New Seemapuri,
Delhi. ......PLAINTIFF
Versus
Sh. Montu Roy
S/o Sh. Nitay Roy
R/o D117, F.F.,
New Seemapuri,
Delhi. ........DEFENDANT
Date of Institution : 04.03.2008
Date of reserving the judgment : 23.01.2021
Date of Judgment : 30.01.2021
Decision : Dismissed
JUDGMENT
SUIT FOR POSSESSION AND DECLARATION,
1. By this judgment, I shall decide the suit for possession and declaration filed by plaintiff against the defendant.
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2. It is stated in the plaint that husband of plaintiff and defendant jointly purchased the suit property no. 1 i.e. the shop ad measuring 5'X7', bearing no. 17, blockE, situated at, Bengali Market, New Seemapuri, Delhi, however the documents for the same were executed in favour of the defendant and the suit property No. 2 i.e. built up property ad measuring 25 sq yards bearing no. D117, New Seemapuri, Delhi and the documents for the same were executed jointly in the name of husband of the plaintiff and the defendant. It is stated that the business of sale of vegetables was jointly being run and entire earnings were being kept by the defendant.
Defendant agreed to sell his undivided half share of the property bearing No. D117, New Seemapuri, Delhi ad measuring 25 sq yards alongwith electricity fittings, fixtures and Shop No. 17, blockE, situated at, Bengali Market, New Seemapuri, Delhi110095 for a total consideration of Rs. 30,000/. The husband of plaintiff had paid Rs. 30,000/ to the defendant on 04.09.2002 and the defendant executed the GPA, Will, agreement to sell, receipt etc in respect of both the properties in favour of husband of plaintiff which were registered in the office of SubRegistrar, Delhi. The defendant had assured to vacate the entire properties shortly but he continued to occupy the same with malafide intention to cheat and harass the plaintiff.
The defendant is residing on the ground and first floor of the property no. D117, New Seemapuri, Delhi, whereas the plaintiff alongwith her husband is residing on the second floor of this property. The defendant had disconnected the electricity connection of the second floor. It has been alleged that defendant has no right, title or interest in CS No. 105572/15 Purabi Roy vs Montu Roy Page No.2 of 17 the aforesaid property and he is illegally occupying the same. The title of the suit properties were transferred in the name of the husband of plaintiff under partition and payment of amount by him to the defendant and the defendant had promised to vacate the suit properties but he is still residing in the suit properties with malafide intention to extract more money from the husband of plaintiff.
3. On these facts plaintiff has prayed for decree of possession of property/ shop measuring 5'X7', bearing no. 17, Block E, Bengali Market, New Seemapuri, Delhi and property no. D117, New Seemapuri, Delhi, measuring 25 sq. yards as shown in the site plan.
Further, it has been prayed that a decree for declaration declaring the documents of settlement / compromise purported to have been signed by the husband of the plaintiff as null and void.
Plaintiff also prayed for a decree in favour of the plaintiff and against the defendant thereby directing him to pay Rs. 2,500/ per month towards use and occupation charges/ damages/ mesne profit from the date of filing the suit till the possession of the suit property is handed over to the plaintiff.
4. Defendant filed his written statement. In the written statement defendant stated that he and the husband of the plaintiff are the real brother and plaintiff is the wife of the brother of defendant. Both the parties prior to coming to Delhi used to reside at their native village Khamarpara, Bakul Tola, New Colony, Post Baswaqria, District Hugli, West Bengal in the joint family. In 1983 defendant came to Delhi from his native village and permanently settled in Delhi. In the year 1989 CS No. 105572/15 Purabi Roy vs Montu Roy Page No.3 of 17 husband of plaintiff for want of employment also came to Delhi with the sole assistance of defendant and he used to reside with defendant. When the husband of plaintiff did not get any job at Delhi he started business of selling the vegetables with the defendant as the defendant was well settled and doing the business of selling the vegetables at that time.
It has been stated that defendant from his own pocket purchased a shop measuring 5ft. X 7 ft bearing No. 17 blockE, situated at, Bengali Market, New Seemapuri, Delhi from Ram Saran in the year 1992 vide GPA, agreement to sell, affidavit, will, receipt, etc for a total consideration of Rs. 11,000/. On 30.12.1998 defendant purchased a house bearing no. D117, New Seemapuri, Delhi measuring 25 sq. yards from Sh. Kale Khan from his own pocket, though it was purchased in joint name i.e. in the name of defendant and husband of plaintiff vide GPA, agreement to sell, affidavit, will, receipt, etc and GPA was duly registered with the SubRegistrar. The said property was purchased by the defendant for which he paid Rs. 1,60,000/ to Sh. Kale Khan which includes all the expenses of papers etc., as Sh. Kale Khan himself prepared the documents and Rs. 1,60,000/ was paid by the defendant to him from his own pocket.
In the month of August, 2002 the husband of plaintiff expressed his intention to get married but most of the parents of the girl want to get marry their daughter with a person who is having own house, and accordingly the husband of plaintiff also requested the defendant to assist him thereby to execute the documents of both the properties in his name with a view to show the parents of respective girl with whom the conversation of the marriage of husband of plaintiff took place. Being an illiterate person and for fulfilling the desire and wish of marriage of CS No. 105572/15 Purabi Roy vs Montu Roy Page No.4 of 17 husband of plaintiff, the defendant agreed only to execute the documents i.e. GPA only in the name of husband of plaintiff but with a condition that the husband of plaintiff shall not misuse the same in any manner either by way of further sale, transfer by creating third party interest or in any manner and for that husband of plaintiff had agreed. It was also settled between husband of plaintiff and defendant that after the marriage of husband of plaintiff or after two years from the execution of documents i.e. GPA which ever is earlier, all the documents likely to be executed by the defendant in favour of husband of plaintiff in respect of both the properties i.e. suit properties shall be deemed to be automatically canceled and the husband of plaintiff shall cooperate with the plaintiff for cancellation of all the documents pertaining to both the properties i.e. suit properties and also shall destroy all the said documents in presence of defendant for which husband of plaintiff had duly agreed with his free will, consent and without any pressure.
In view of the said settlement and for the sake of marriage of husband of plaintiff, defendant cooperated with the husband of plaintiff and at the instance of husband of plaintiff and without taking even a single penny, the defendant signed the GPA of both properties under good faith but husband of plaintiff in fraudulent manner and by cheating had taken the signature of defendant on several blank papers on even the papers having the revenue stamps in blank and other typed papers attached with the said GPA and accordingly under the good faith and without any consideration passed between the parties, the husband of plaintiff succeeded to get the signatures of defendant on several papers on the pretext of GPA. GPA was got registered on 04.09.2002 with the SubRegistrarIV, Delhi and he might have manipulated and misused the CS No. 105572/15 Purabi Roy vs Montu Roy Page No.5 of 17 said signed papers thereby preparing affidavit, agreement to sell, receipt and possession letter or any other kind of documents pertaining to property No. / shop No. 17, BlockE, Bengali Market, Subzi Mandi, Illaqa Shahdara, New Seemapuri, Delhi. Defendant being an illiterate person, was not aware that on which kind of document the husband of plaintiff had taken the signature of defendant but all was done under good faith and for the sake of marriage of the husband of plaintiff. It is stated that besides the said shop the husband of plaintiff also succeeded in his mischievous act to get the signature of defendant on the documents pertaining to the property No. D117, New Seemapuri, Delhi thereby i.e. GPA dated 04.09.2002.
It is stated that in the year 2003, husband of plaintiff got married with the plaintiff and after marriage of Shankar Roy/ husband of plaintiff, the defendant asked him to return all the documents and papers including blank papers and all other papers on which husband of plaintiff had taken the signature of defendant. However, husband of the plaintiff avoided on the pretext that he was newly married and his wife i.e. plaintiff was very clever and the entire documents are in her custody but he promised and assured the defendant that he will return the entire documents of both the properties bearing shop No. 17, BlockE, Bengali Market, New Seemapuri, Delhi and property No. D117, New Seemapuri, Delhi including all other papers pertaining to suit properties.
It is stated that defendant got worried and he put family pressure upon the plaintiff and her husband and therefore on 02.01.2007 an agreement was arrived between defendant and husband of plaintiff, according to which plaintiff and her husband sought apology and the husband of plaintiff had given in writing to the defendant that he would CS No. 105572/15 Purabi Roy vs Montu Roy Page No.6 of 17 return the entire set of documents i.e. GPA, Will and all other documents on which husband of plaintiff had taken the signature of defendant pertaining to both suit properties alongwith all the documents if prepared by defendant no. 1 and 2 on or 30.04.2007 on the pretext that he i.e husband of plaintiff had taken a loan and the document are lying with the person from whom husband of plaintiff had taken the loan. The husband of plaintiff also undertook and assured the defendant that on or before 30.04.2007 husband of plaintiff would take back the papers of both the properties and would return the same to the defendant and he will not misuse the same and a compromise was arrived at according to which the property No. D117, New Seemapuri, Delhi was also partitioned between defendant and husband of plaintiff out of which ground floor and first floor of property no. D117, New Seemapuri, Delhi came into the share of defendant as his absolute share being the absolute owner of that much portion and IInd floor portion of the said property came into the share of husband of plaintiff as his absolute share and rest of the portion remained common for both defendant and husband of plaintiff and Rs. 50,000/ cash was also received by the husband of plaintiff from the defendant as he was in need of money and as such he left/ surrendered some of his share in favour of defendant voluntarily and it was agreed that the property bearing shop No. 17, BlockE, Bengali Market, New Seemapuri, Delhi shall be owned and possessed by defendant alone. Everything was settled by husband of plaintiff and defendant in writing. Despite that, husband of plaintiff had not complied with the settlement, hence it has been prayed that the suit is liable to be dismissed.
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5. Plaintiff filed replication to written statement and denied the objections raised by the defendant as false and baseless and reiterated the plaint.
It is to be noted that vide order dated 14.03.2011 the name of the plaintiff no. 1 i.e. Shankar Roy/ husband of the plaintiff and name of the defendant no. 2 Smt. Kamla was deleted from the array of parties.
6. After completion of pleadings the issues were settled and from pleadings following issues were framed:
1) Whether the plaintiffs have no locus standi to file the present suit?
(OPD)
2) Whether the suit of the plaintiff has not been property valued for the purposes of court fees and jurisdiction? (OPD)
3) Whether the suit of the plaintiff is barred by limitation? (OPD)
4) Whether the suit of the plaintiff is liable to be rejected U/o 7 Rule 11 CPC? (OPD)
5) Whether the suit has not been properly verified and filed in accordance with law? (OPD)
6) Whether the plaintiffs are entitled to the relief of possession, as prayed for? OPP
7) Whether the plaintiffs are entitled for the decree of declaration, as prayed for? OPP
8) Whether the plaintiffs are entitled for any damages/ mesne profits from the defendants? If so, at what rate and for which period?
OPP
9) Relief.
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7. After settlement of issues the matter was fixed for plaintiffs evidence. To prove her case plaintiff examined herself as a witness.
8. PW1 is plaintiff herself. Plaintiff filed her affidavit Ex. PW1/A reiterating the facts mentioned in plaint. With affidavit plaintiff tendered the documents i.e. GPA, Gift Deed, possession letter, deed of Will in September 2006 (Ex.PW1/1 to Ex. PW1/4), site plan, GPA, deed of Will, agreement to sell and purchase, affidavit, receipt and possession slip pertaining to property No. D117, New Seemapuri (Ex. PW1/5 to Ex. PW1/11), GPA, Deed of Will, agreement to sell and purchase, affidavit, receipt and possession slip pertaining to shop No. 17, BlockE, New Seemapuri (Ex. PW1/12 to Ex. PW1/17). ( Ex. PW1/6 to Ex. PW1/17 are releated to the shop and house collectively). Plaintiff was cross examined at length by Ld. Defence Counsel.
9. Thereafter, PE was closed vide order dated 24.11.2018 and matter was fixed for DE.
10. In DE, defendant filed his affidavit DW1/A and reiterating the facts as mentioned in the written statement. Same are not repeated here for the sake of brevity. He relied upon the following documents:
1. Site plan of shop in question as Ex.DW1/1.
2. Site plan of property in question as Ex.DW1/2.
3. Copy of GPA dated 30.12.1998 as Ex.DW1/3.
4. Copy of Will dated 30.12.1998 as Ex.DW1/4.
5. Copy of agreement to sell dated 30.12.1998 as Ex.DW1/5.
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6. Copy of affidavit dated 30.12.1998 as Ex.DW1/6.
7. Copy of receipt dated 30.12.1998 as Ex.DW1/7.
8. Copy of letter/assurance/receipt/undertaking as Ex.DW1/8.
9. Copy of notice as Ex.DW1/9.
10. Copy of complaint dated 22.05.2007 as Ex.DW1/10.
11. Copy of registered receipts are Ex.DW1/11 and Ex.DW1/12 respectively.
12. Copy of acknowledgement car showing the service of SHO as Ex.DW1/13.
13. Copy of complaint dated 08.01.2010 as Ex.DW1/14.
14. Copy of notice issued to SHO as Ex.DW1/15 and its postal receipt as Ex.DW1/16.
15. Copy of notice dated 09.01.2010 as Ex.DW1/17 and its postal receipt as Ex.DW1/18 and Ex.DW1/19 respectively and
16. Copy of notice as ExDW1/20 and its postal receipts as Ex.DW1/21 and Ex.DW1/22 respectively and UPC receipt as Ex.DW1/23.
11. DW2 Sh. Suresh Chand, draftsman of site plan proved the site plan Ex. DW1/1 and Ex. DW1/2. This witness was crossexamined at length by Ld. Counsel for the plaintiff.
12. DW3 Sh. Ram Saran, deposed that he was the owner of the shop bearing no. E17, New Seemapuri and sold the property to defendant and defendant had paid him the entire consideration amount and he had handed over the entire chain of title document to the defendant. He further stated that he had never met nor known the husband of the CS No. 105572/15 Purabi Roy vs Montu Roy Page No.10 of 17 plaintiff. He identified the documents of sale executed by him in favour of defendant qua the aforesaid shop. This witness was crossexamined at length by Ld. Counsel for the plaintiff.
13. DW4 Sh. Deepak Jain, handwriting and fingerprint Expert filed his affidavit Ex. DW4/A and proved his report dated 03.02.2015 as Ex. DW4/1 and photographs Ex. DW4/2 (Colly). This witness was also crossexamined at length by Ld. Counsel for the plaintiff.
14. Thereafter vide order dated 27.09.2019 DE was closed and the matter was fixed for final arguments. Ld. Counsel for plaintiff as well Ld. Counsel for defendant filed their written arguments. I have considered the contentions of both the parties and carefully gone through the record. The issue wise finding is as follows:
Issue Nos. 6, 7 and 815. Issue Nos. 6, 7 and 8 are taken first and shall be decided together being interrelated. I shall be dealing with the above said three issues first as the entire suit of the plaintiff is dependent upon the outcome of the abovesaid three issues no. 6, 7 and 8.
16. Basically, the case putforth by plaintiff, Ms. Purbi Roy is that husband of the plaintiff and defendant are brothers and they jointly purchased the shop bearing No. 17, blockE, New Seemapuri, Delhi and property No. D117, New Seemapuri, Delhi, as the husband of the plaintiff and defendant contributed towards the purchase of abovesaid two properties. However the shop was purchased in the name of CS No. 105572/15 Purabi Roy vs Montu Roy Page No.11 of 17 defendant and the house was purchased jointly in the name of husband of the plaintiff and the defendant. The defendant agreed to sell his undivided half share of the property No. D117, New Seemapuri, Delhi and the shop bearing No. 17, blockE, New Seemapuri, Delhi for the total consideration of Rs. 30,000/ and accordingly, on 04.09.2002, defendant executed GPA, Will, Agreement to Sell, Receipt of both the said properties in favour of the husband of the plaintiff. The documents were duly registered at the office of SubRegistrar. Despite execution of the abovesaid documents, defendant is residing on the ground and first floor of the property No. D117, New Seemapuri, Delhi, whereas the plaintiff is residing on the second floor of the said property and despite transfer of the property in question, the defendant has not vacated the shop as well as the ground and first floor of the house.
17. Since, after the execution of the said documents, the defendant has no right, title or interest in the property in question and he is illegally occupying the same, the suit has been filed praying for decree of possession qua the shop as well as house in question and for a decree of declaration declaring settlement/ compromise purported to have been signed by defendant no. 1 as null and void. Further that, mesne profits be granted to the plaintiff.
18. To prove her case, the plaintiff herself stepped into the witness box as PW1, however in the considered opinion of this Court, there are a lot of contradictions which came out from the crossexamination of PW
1. In fact, the plaintiff was not aware of most of the facts which has totally shattered the case of the plaintiff. As the transactions were CS No. 105572/15 Purabi Roy vs Montu Roy Page No.12 of 17 entered allegedly between the husband of the plaintiff and the defendant, the plaintiff was unable to give answers to a lot of questions being unaware of the same. She very clearly stated that she did not know as to whether Montu Roy, i.e. defendant had purchased the property No. D 117, New Seemapuri, Delhi or not. She has neither admitted nor denied several suggestions put to her by Ld. counsel for the defendant. She was not even aware about the consideration paid for the purchase of both the properties. She admitted that till date the defendant had not executed any document in her favour pertaining to property No. D117, New Seemapuri, Delhi i.e. the house and the property bearing No. 17, block E, New Seemapuri, Delhi i.e. the shop. She further admitted that her husband did not execute any sale deed in respect of the said properties. The deposition of PW1 was more in the nature of hearsay evidence as told to her by her husband and she was not having any firsthand knowledge about a lot of facts alleged by her in her plaint as well as in her affidavit. Thus, it can be said that the evidence led by the plaintiff in the present case does not inspire confidence so as to grant any relief in her favour.
19. Admittedly, the documents on the basis of which plaintiff is seeking relief are the GPA, Deed of Will, Agreement to Sale and Purchase, Affidavit, Receipt and Possession letter and Sale deed qua property No. D117, New Seemapuri, Delhi which are Ex. PW1/5 to Ex. PW11 and the said documents qua shop No. 17, blockE, New Seemapuri, Delhi i.e. GPA, Deed of Will, Agreement to Sale and Purchase, Affidavit, Receipt and Possession letter and Sale deed which are Ex. PW1/12 to Ex. PW17. Now, it is to be seen that whether on the CS No. 105572/15 Purabi Roy vs Montu Roy Page No.13 of 17 basis of the said documents, plaintiff is entitled to relief prayed by her in her plaint or not?
In Suraj Lamps & Ind. Pvt. Ltd vs State of Haryana 183(2011) DLT 1 (SC) held, "any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirement of Section 54 & 55 of TPA and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted U/s 53 A of the TPA). According to TPA, an agreement to sale, whether with possession or without possession is not a conveyance. Section 54 of TPA enacts that sale of immovable property can be made only by a legal instrument and an agreement to sell does not create any interest or charge on its subject matter."
Further held, "immovable property can be legally and lawfully transferred / conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA Sales' or 'SA/ GPA/ Will transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53 A of the TPA."
Relying upon the judgment in Suraj Lamps' case, Hon'ble Delhi High Court in Ramesh Chand vs Suresh Chand 188(2012)DLT 538, held, "unless there is a proper registered sale deed, title of an immovable property does not pass. The rights which are created pursuant to Section 53 A of the TPA dealing with the doctrine of part performance, an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act and devolution of interest pursuant to a will. Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53 A of the TPA, Section 202 of the Contract Act. There also take place devolution of interest after the death of the testator in terms of a Will."
20. Therefore as held above by the Hon'ble Supreme Court and by the Hon'ble Delhi High Court, the GPA sales or SA/GPA/Will transfers' do CS No. 105572/15 Purabi Roy vs Montu Roy Page No.14 of 17 not convey title in favour of any party except to the limited extent of Section 53 A of the TPA. However, if the rights which are pursuant to Section 53 A of the TPA dealing with the doctrine of part performance, an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act and devolution of interest pursuant to a will, a person strictly may not have completed ownership rights yet certain rights can exists in an immovable property. Thus, on the basis of the said documents the plaintiff can neither claim her absolute ownership nor she can claim possession of the suit property. Admittedly, defendant is in possession of the shop and ground and first floor of the house and no sale deed has been executed by him till date.
21. Moreover, Section 101 of the Evidence Act, 1872 defines "burden of proof" which is reproduced as below: "101 Burden of proof: Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that persons."
22. Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the CS No. 105572/15 Purabi Roy vs Montu Roy Page No.15 of 17 basis of weakness of other party."
23. Further, "Section 58 of the Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings."
24. There is clearcut admission by the plaintiff in her cross examination that no sale deed has been executed till date by the defendant in favour of the plaintiff's husband. Since, the plaintiff herself has failed to discharge her onus to prove her case, there is no ground to grant any relief in favour of the plaintiff.
25. Therefore, in view of the judgments of Hon'ble Supreme Court and Hon'ble Delhi High Court cited above and also in view of the fact that the crossexamination of PW1 was full of contradictions it can be said that plaintiff is not entitled for the relief claimed by her in her plaint and thus the Issues No. 6, 7 and 8 are decided in favour of the defendant and against the plaintiff.
Issues No. 1 to 526. Now, coming to the Issues No. 1, 2, 3, 4 and 5. No evidence has been led by the defendant to prove all such issues as onus to prove the same was upon the defendant. As the defendant as failed to discharge his onus these issues are decided against the defendant and in favour of the CS No. 105572/15 Purabi Roy vs Montu Roy Page No.16 of 17 plaintiff.
27. Accordingly, the suit is hereby dismissed as there is no ground to grant any relief as claimed by the plaintiff. Parties to bear their own costs. Decree sheet be prepared accordingly.
28. File be consigned to Record Room after due compliance.
Announced in the open court (PUNEET PAHWA)
on 30th January, 2021 ACJcumARCcumCCJ
NorthEast District, KKD
Delhi.
Digitally signed
PUNEET by PUNEET
PAHWA
PAHWA Date: 2021.02.03
12:36:08 +0530
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